Vol. 32No. 1

By
Kathleen A. Kirby,
Ari S. Meltzer

Kathleen A. Kirby is the co-chair of Wiley Rein’s Mass Media Practice. She is a member of the governing board of the ABA Forum on Communications Law, chair of the Federal Communications Bar Association’s (FCBA’s) Mass Media Practice Committee, and the recipient of the Radio Television Digital News Foundation’s 2015 First Amendment Leadership Award. Ari S. Meltzer is an associate in the Mass Media Practice at Wiley Rein and chair of the FCBA’s Social Media/Membership and Marketing Committee.

The trailer begins with three short buzzing sounds, accompanied by flashing images of armed terrorists breaking through the front gate of the White House. Then comes a steady tone, with visuals of the White House in flames and bold white letters over a black screen reading “This Is Not a Test.” The remainder of the 30-second trailer contains similar imagery and sounds.

In many ways, the “No Surrender” trailer for the film Olympus Has Fallen was a compelling television advertisement—it was attention-grabbing, fast-paced, and visually stunning. But to the Federal Communications Commission (FCC or Commission), the movie trailer was something else: an impermissible use of the tones and attention signal used as part of the Emergency Alert System (EAS). The EAS is a national public warning system used by the president of the United States and federal, state, and local authorities to deliver important emergency information, including national emergencies, AMBER alerts, and weather information. In March 2014, the FCC proposed fines totaling almost $2 million to ESPN, NBC Universal, and Viacom for embedding the trailer—including the repeated use of the EAS tones—in the programming that they transmitted to multichannel video programming distributors (MVPDs).1

Although none of the ESPN, NBC Universal, or Viacom channels that carried the “No Surrender” trailer are participants in the EAS, that did not stop the Commission from assessing its largest EAS-related fines to date against the programmers. And the FCC has subsequently suggested that it could extend its reach even further, enforcing the EAS rules against anyone involved in the creation or distribution of content. Under this broad interpretation, advertisers, advertising agencies, programmers, distributors, syndicators, broadcasters, and MVPDs all should be aware of the rules governing the use of EAS tones outside of an actual emergency.

HISTORY OF THE FCC’S REGULATION OF EAS TONES AND FALSE SIGNALS OF DISTRESS

Initial Prohibition on False or Fraudulent Signals of Distress

In the Radio Act of 1927, Congress included a provision stating: “No person, firm, company, or corporation within the jurisdiction of the United States shall knowingly utter or transmit, or cause to be uttered or transmitted, any false or fraudulent signal of distress, or communication relating thereto[.]”2 The legislative history for this section explains that it “forbids the transmission of false or fraudulent communications, signals of distress, or signals of any kind.”3 In the Communications Act of 1934, Congress included this same language in § 325(a), where it remains codified today.4

When Congress adopted § 325(a), the United States did not have a national public alerting system. That changed in 1951, at the height of the Cold War, when Congress amended § 606(c) of the Communications Act to permit the president to “suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations” or to “authorize the use or control of any such station or device and/or its apparatus and equipment, by any department of the Government under such regulations as he may prescribe.”5 Bestowed with this authority, President Harry S. Truman established CONELRAD (Control of Electromagnetic Radiation) “to modify normal use of broadcasting frequencies so as to deny direction-finding navigation information to attacking bombers; to provide a means for the President to address the American people; to provide attack warning; and to supply emergency information.”6 Under CONELRAD, during an emergency alert, most stations were to go off the air, while the others could broadcast only on two frequencies so enemy missiles could not use the transmissions as a guide for their targets.

In 1963, President John F. Kennedy proposed replacing CONELRAD with the Emergency Broadcast System (EBS), which allowed broadcasters to continue to transmit on their assigned frequencies during an emergency, but also provided the president with a system for communicating with the public.7 Under the EBS, emergency alerts commenced with a two-tone attention signal. An operator at the television or radio station was required to listen to the audio message coming out of a speaker to determine whether to retransmit the message.

It was not until 1991, during the Gulf War, that the FCC first asserted its enforcement authority under § 325(a) for a station’s alleged misuse of the EBS.8 According to the FCC, in January of that year, radio station KSHE(FM) in Crestwood, Missouri, interrupted music programming with a 10-second tone and the following audio:

Nearly two hours after this interruption, the announcer offered an on-air apology, explaining that he had been attempting to make a point about the horrors of nuclear war. The station continued to broadcast an apology throughout the day and suspended the announcer without pay for a week.

On May 1, 1991, the FCC issued a notice of apparent liability for forfeiture proposing a fine of $25,000 against the station’s licensee, Emmis Broadcasting Corp. of St. Louis. In its opinion, the Commission stated that “it appears that the subject broadcast violated the provisions of Section 325(a) of the Communications Act, prohibiting false or fraudulent signals of distress or communications relating thereto.”10 Although the licensee claimed that the tone in the broadcast was “a common ‘bleep’ tone” and not the two-tone EBS warning, the agency cited listener complaints for the proposition that “most listeners mistook the tone for the authentic EBS signal.”11 In a sentence that has served as the foundation of the FCC’s recent enforcement actions in this area, the Commission went on to state that, “[t]o the extent that listeners understood the tone was used to ‘cry wolf,’ the integrity of the [EBS] has been undermined.”12

The Broadcast Hoax Rule

At around the time of the KSHE case, the FCC admonished several other stations for “fabricat[ing] stories concerning a crime or catastrophe that alarmed the public and resulted in the needless diversion of public safety or law enforcement resources.”13 In one case, a radio station falsely reported that the station had been taken hostage. In another, the station reported that a nearby volcano had erupted. In yet another, a friend of the hosts of a popular radio program purportedly confessed on the air to murdering his girlfriend.

In response to these incidents, the Commission adopted the hoax rule, which prohibits the licensee of a broadcast station from broadcasting “false information concerning a crime or a catastrophe if: (a) [t]he licensee knows this information is false; (b) [i]t is foreseeable that broadcast of the information will cause substantial public harm[;] and (c) [b]roadcast of the information does in fact directly cause substantial public harm.”14 In adopting this rule, the FCC equated the false broadcast of information about a crime or catastrophe to “falsely shouting fire in a theatre and causing a panic.”15

The Commission attempted to describe the adopted regulation as a narrow infringement on free speech, explaining that it did not intend “to restrict harmless pranks, or to deter broadcasts that might upset some listeners but do not pose a substantial threat to public health or safety.”16 With regard to the foreseeability of substantial public harm, the agency stated that “the more inherently unbelievable the broadcast, the more certain broadcasters can be that substantial public harm is unforeseeable.”17 Moreover, to result in a violation, any public harm must “begin immediately after the broadcast and result in actual damage.”18 Thus, “a broadcast hoax that results in no more than a few questions to the police or complaints to the station would probably not impose substantial public harm.”19

Since adopting this rule in 1992, the FCC never has pursued an enforcement action against a broadcast licensee for committing a broadcast hoax.

The Specific Prohibition on Misuse of EAS Tones

In 1995, the FCC adopted rules replacing the EBS with the EAS.20 Unlike the EBS, which utilized an analog transmission that required manual intervention, the EAS was designed as a digital, automated process. Each EAS transmission consisted of a digital header, an attention signal (similar to, but shorter than, the old EBS signal), the audio or text alert, and an end of message code.

In addition to modernizing the system for delivering emergency messages, the FCC also expanded its ability to pursue enforcement actions against parties that broadcast “false and deceptive codes.”21 Notwithstanding the existence of § 325(a) and the hoax rule, the Commission concluded that “a specific prohibition against the misuse of the EAS attention signal and codes is necessary . . . because it is more specific and directly addresses the proper use of EAS codes and tones.”22

Accordingly, the FCC adopted § 11.45 of the Commission’s rules, which states: “No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.”23 Importantly, the rule does not define the terms “person,” “transmit,” or “simulation thereof,” and the breadth of these terms has been the subject of debate in several recent enforcement proceedings.

THE FCC MAKES MISUSE OF THE EAS TONES AN ENFORCEMENT PRIORITY

For almost 10 years, the new prohibition on misuse of EAS tones sat on the FCC’s books with no public enforcement activities. In late 2013, however, the Commission took the first of several recent actions that demonstrate it has made preventing misuse of the EAS a top priority.

On November 5, 2013, the Enforcement Bureau simultaneously released a consent decree with television station licensee MMK License LLC and a notice of apparent liability for forfeiture against Turner Broadcasting System, Inc.—both for misuse of sounds that the FCC believed constituted recordings or simulations of the EAS codes or attention signal. In total, the FCC has pursued seven cases against nine different entities, resulting to date in financial penalties in excess of $2.25 million.

MMK License LLC

In MMK License LLC, the FCC received a complaint alleging that, on June 15, 2012, television station WNKY(TV), Bowling Green, Kentucky, broadcast a commercial for “The Fan Wear & More Store” that “stops in the middle of the commercial and sounds the exact tone used for the Emergency Alert warnings.”24 In response to a letter from the Commission’s Enforcement Bureau, the licensee admitted that the advertisement included a simulation of an EAS tone.

The licensee entered into a consent decree pursuant to which it agreed to: (1) make a voluntary contribution to the U.S. Treasury of $39,000; (2) implement a compliance plan under which it was to “include internal procedures and policies specifically designed to ensure that MMK does not broadcast the EAS Attention Signal or EAS tones, or a simulation thereof, absent an emergency or authorized EAS test”; (3) broadcast 74 public service announcements (PSAs) immediately prior to or following its weekly and monthly EAS tests to advise the public about the purpose and length of the tests; (4) broadcast at least 160 PSAs about emergency and disaster preparedness; (5) broadcast segments about emergency awareness topics at least twice a month on its morning program; and (6) lease space on its communications tower to the local emergency management department “for a new modernized communications system.”25

Turner I

In the first case against Turner Broadcasting System, Inc., the FCC received a complaint alleging that a promotion for the Conan show on the TBS Network “used the emergency weather tones to gain attention for a commercial regarding Jack Black being on the show for April 26, 2012.”26 Turner admitted that it produced and distributed the referenced promotion for the Conan show, but claimed that “the promotion did not include any portion of an actual EAS Code.”27 Instead, Turner said, the promotion included “a prerecorded ‘sound burst’ followed by a ‘bars and tone’ sound.”28

The FCC’s Enforcement Bureau determined that although the promotion did not use the actual EAS codes and data, it nevertheless “constitute[d] a simulation of the EAS codes and Attention Signal.”29 In so finding, the Bureau stated that “a ‘simulation’ of the EAS codes or Attention Signal is not limited to recordings of actual EAS codes or Attention Signals, but also includes the transmission of sounds that mimic or are substantially similar to the sounds made by the transmission of EAS codes or the EAS Attention Signal.”30 Because the sounds used in the promotion were “substantially similar to the sounds made by the transmission of EAS codes such that an average audience member would reasonably mistake the sounds for the sounds made by actual EAS codes,” the agency reasoned that they constituted a simulation of those tones.31 This distinction between an actual recording of the EAS tones and one that reasonably could be mistaken by “an average audience member” reflects an important broadening of the FCC’s enforcement authority.

The Commission was not persuaded by Turner’s claim that the second audio element used in the promotion “was similar to the ‘bars and tone’ sound associated with color bar test patterns.”32 Instead, the Bureau determined that this audio element “was a dual tone sound that is substantially similar to the dual-tone EAS Attention Signal—such that an average listener would reasonably mistake the sounds for an actual EAS Attention Signal—and was unlike the single tone sound typically used in bars and tone test patterns.”33

Accordingly, the Enforcement Bureau found that Turner’s inclusion of simulated EAS codes and attention signals violated both § 325(a)of the Communications Act and § 11.45 of the FCC’s rules. In assessing a $25,000 forfeiture against Turner, the Bureau considered the number of transmissions (including that Turner distributes both East Coast and West Coast feeds); Turner’s “substantial nationwide audience”; the annual revenues of Turner’s parent, Time Warner Inc.; and the fact that “violations of this nature . . . undermine the integrity of the EAS and therefore implicate substantial public safety concerns.”34

EAS Enforcement Advisory

On the same day it released the MMK and Turner I decisions, the FCC’s Enforcement Bureau also issued an advisory “to promote widespread understanding of the laws governing appropriate use of the Emergency Alert System codes and Attention Signal.”35 In the EAS enforcement advisory, the Bureau noted that in response to consumer complaints, it recently “began several investigations into entities that broadcast, transmitted, or caused to be transmitted content that allegedly used the EAS codes or Attention Signal (or simulations thereof) to capture the audience’s attention in connection with unauthorized uses, including advertisements and promotions.”36

The enforcement advisory provided an important clarification regarding what constitutes a simulation of the EAS codes or attention signal and what entities can be held liable for violating the EAS laws. First, the Bureau repeated its statement in Turner I that a simulation “includes not only recordings of actual EAS codes or Attention Signals, but also sounds that mimic or are substantially similar to them, such that an average listener could reasonably mistake the sounds for an actual EAS code or Attention Signal.”37 Then, for the first time, the Bureau provided examples of “general alarms of other loud noises” that are not considered “simulations” of the EAS codes and attention signals, including “bells, claxons, and police, fire or civil defense sirens.”38 Undermining the value of this statement, however, the enforcement advisory went on to say that although those sounds “standing alone would not violate Section 11.45 of the rules, Section 325(a) of the Act covers a potentially broader circumstance in which such sounds might contribute to false or fraudulent communication of distress prohibited under the statute.”39

As to who may be liable for violating the EAS laws, the enforcement advisory explained that because the rule “applies to any ‘person’ who ‘transmits’ or ‘causes to transmit’ a prohibited signal,” it applies “to programmers that distribute programming containing a prohibited sound regardless of whether or not they deliver the unlawful signal directly to consumers” and “to a person who transmits an unlawful signal even if that person did not create or produce the prohibited programming in the first instance.”40 Accordingly, the Bureau clarified that the prohibition “applies to a broadcaster, cable operator, or satellite carrier that transmits programming containing a prohibited sound even if the programmer that embedded the sound is not under common ownership or control with the respective broadcaster, operator, or carrier.”41 Notably absent from this list are program producers, content owners, advertising agencies, and other entities that are involved in the creation of content for broadcast, cable, or satellite distribution. The FCC would later clarify that even these entities may not be immune from the EAS laws.

Turner II

Less than two months after Turner I, the FCC issued another notice of apparent liability for forfeiture against Turner Broadcasting System, this time for embedding a commercial on the Adult Swim Network in January 2013 that included “audio material that constitutes a simulation of the EAS codes.”42

Unlike the promotion in Turner I, which was produced and distributed by Turner, the advertisement in Turner II was created by Sony Music Group to promote a new rap album by the artist A$AP Rocky and the availability of that album at Best Buy. The FCC received two complaints about this advertisement. The first claimed that the sound was “so identical in pitch, duration and frequency to the official emergency broadcast sound that it is indistinguishable from the real thing.”43 Both complaints suggested that the complainants initially believed that the tones signified an actual emergency. In response to a letter of inquiry from the FCC, Turner claimed that “the advertisement did not include any portion of an actual EAS code,” but that it “was unable to determine the nature or source of the ‘sound effect’ used in the audio portion of the advertisement.”44

This case presented three issues: (1) whether the Commission can hold a programmer responsible for content that it did not create; (2) whether a cable programmer can be held liable for violating the EAS rules; and (3) the extent to which the EAS rules apply to sounds that are not actual recordings of the EAS tones.

Although the advertisement was created by a third party, the FCC nevertheless found that it could hold Turner liable based on the fact that the material “was reviewed and approved by Turner before Turner inserted the advertisement into the Adult Swim Network programming.”45 This reasoning raised two further questions that were, for the time, left unanswered: (1) whether the Commission could have sought to hold the advertisement’s creator liable in addition to, or in lieu of, Turner; and (2) whether an entity that does not review third-party materials before inserting them into its programming could still be held liable for violating the EAS rules.

The FCC conclusively determined that it could hold a cable programmer liable for violating the EAS rules, noting that Turner delivers Adult Swim Network programming to MVPDs across the country “with the intent (indeed, the contractual obligation) that the network programming ultimately be transmitted by the MVPDs to the MVPDs’ subscribers.”46

Finally, the Commission reiterated the principle, first stated in Turner I, that sounds “simulate” the EAS tones when they “are substantially similar to the sounds made by the transmission of EAS codes such that an average audience member would reasonably mistake the sounds for the sounds made by actual EAS codes.”47

Accordingly, the Commission found that Turner again had violated both § 325(a) of the Communications Act and § 11.45 of the FCC’s rules. Notwithstanding the fact that Turner did not actually create the advertisement at issue, the agency proposed a $200,000 forfeiture—eight times that levied in Turner I—reasoning that “despite its experience with the problem of misusing EAS codes and Attention Signals, Turner continued to violate Section 11.45 of the Commission’s rules and Section 325(a) of the Act, indicating a higher degree of culpability in this instance.”48 Of course, what the FCC did not mention is that Adult Swim Network distributed the A$AP Rocky advertisements in mid-January 2013—approximately one month before the Enforcement Bureau issued its letter of inquiry in the Conan case.

The Olympus Has Fallen Case

If the Turner cases and the MMK case sent tremors through the industry, then the Olympus Has Fallen case sent a shockwave. As described above, this case involved a trailer for the film Olympus Has Fallen, entitled “No Surrender,”that included three instances of the EAS codes and two instances of the EAS attention signal in a trailer complete with images of the White House engulfed in flames, terrorists surrounding the White House, and the words “This Is Not a Test” and “This Is Not a Drill” appearing on the screen. Although the size of the proposed forfeitures—$1,120,000 against Viacom, $530,000 against NBC Universal, and $280,000 against ESPN—garnered all of the headlines, this case also provided substantial new direction about the FCC’s enforcement of the rules governing use of EAS tones or simulations thereof.

First, the Commission emphasized that the rules are broadly applicable. The companies had argued that the proscriptions should not apply directly to them because, as cable programmers, they are not EAS participants. However, the agency pointed to the plain language of § 11.45, which states that “[n]o person may transmit or cause to transmit the EAS codes or Attention Signal,” and noted that, when the FCC adopted § 11.45, it cited the need “to prohibit anyone from transmitting the EAS two-tone attention signal or any of the new special codes for false or deceptive use.”49 Given these “terms of broad applicability,” the Commission reasoned that the rule extends to entities other than EAS participants.

Second, the FCC indicated that any entity in the distribution chain could be found to “transmit” or “cause to transmit” the prohibited material. In their responses to the Commission’s inquiries, the companies attempted to thread the needle, claiming, on one hand, that MVPDs, not the cable programmers, were responsible for “transmitting” the trailer to consumers and, on the other hand, that if any entity caused the trailer to be transmitted, it was the advertising agency that produced the trailer and embedded the EAS tones therein. Rather than parse the meaning of each of these terms, however, the agency simply concluded that, by reviewing the trailer in advance and affirmatively deciding to include the trailer in the programming distributed to MVPDs, the companies at least caused the EAS tones or simulations thereof to be transmitted, which itself is a violation of § 11.45.

The FCC did not address whether the agency also could have pursued a cause of action against either the advertising agency that created the trailer or the MVPDs that directly transmitted the trailer to the public. Thus, the uncertainty over the scope of the Commission’s enforcement authority remained.

Finally, the agency definitively stated that the use of the EAS tones does not have to involve deception to constitute a violation of § 11.45 of the FCC’s rules or § 325(a) of the Communications Act. Again, the Commission relied on the plain language of the rule, which prohibits the transmission of the EAS tones “in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.” Thus, the Commission reasoned, “[t]he text of the rule does not provide or suggest that having intent to deceive is required, nor does it excuse ‘dramatic’ uses.”50 Similarly, the agency concluded that § 325(a)of the Communications Act does not rely on a deceptive use, citing its explanation in Emmis that “using the tone to ‘cry wolf’ undermined the integrity of the EBS and endangered the effectiveness of the EBS warning tone as a method of alerting the public to danger in the first instance.”51

As far as the amount of the proposed forfeitures, the FCC reasoned that, whereas the advertisement in Turner II was only transmitted over “a single Turner-controlled network . . . the No Surrender Trailer was transmitted on no fewer than three different networks by each of the Companies, greatly increasing the potential harm by increasing the potential reach of the transmissions.”52 The Commission also considered the number of repetitions, the number of days over which the violation occurred, the audience reach of the transmissions, and whether an EAS activation was triggered. Although each of the entities claimed that it either had changed its review process or were in the process of doing so, the FCC did not find this additional vigilance sufficient to reduce the amount of the proposed forfeitures, stating that “remedial efforts taken after a Commission investigation or enforcement action do not excuse or mitigate a licensee’s violation of a Commission rule.”53

In its response to the notice of apparent liability for forfeiture, Viacom argued that Horizon Media, which produced the trailer and embedded the EAS tones therein, should be exclusively liable for any violation. Not only did the FCC reject this argument, stating that “entities acting as ‘conduits’ for misconduct cannot shift blame to a third party,” but it also ominously asserted “prosecutorial discretion” in pursuing enforcement actions.54 Under this discretion, “the absence of action against any or all potentially liable entities does not preclude [the FCC] from enforcing against a specific violator.”55

SM Radio Productions

After releasing the MMK, Turner I, Turner II, and Olympus Has Fallen decisions in close succession, the FCC took a several month hiatus from issuing new opinions in cases involving the alleged misuse of the EAS. In December 2014, however, the Commission once again expanded its enforcement reach, issuing a citation for violating the EAS rules, for the first time, to an entity that is not an FCC licensee.56

SM Radio Productions, Inc., is the producer of The Stephanie Miller Show, a nationally syndicated liberal talk show. During the December 4, 2013, episode of the show, an embedded commercial for “The Sexy Liberal Comedy Tour” included the EAS attention signal, resulting in a listener complaint. SM Radio neither produced the commercial nor directly transmitted it to listeners. Instead, SM Radio obtained the commercial from an independent contractor, reviewed it, and then inserted it into the program, which it transmitted via satellite to a radio service for simultaneous retransmission to listeners. Nevertheless, because SM Radio “knowingly inserted promotional material containing the EAS Attention Signal into programming that it intentionally transmitted . . . for retransmission to members of the public,” the agency determined that SM Radio violated § 11.45 of the FCC’s rules and § 325(a) of the Communications Act.57

Notably, although at least one of the entities in the distribution chain was an FCC licensee, the Commission instead pursued an enforcement action against SM Radio, an entity that is not subject to FCC regulation. This is significant because § 503 of the Communications Act, which provides the FCC with its authority to issue monetary forfeitures, prohibits the Commission from imposing such forfeitures against nonregulatees without first: (1) issuing a citation to the violator, (2) providing a reasonable opportunity to respond, and (3) determining that the violator subsequently engages in the prohibited conduct described in the citation.58 Thus, SM Radio did not have to pay any monetary penalty in relation to the December 2013 program. However, as the Commission noted, if SM Radio commits a subsequent violation of the EAS laws, the agency may assess forfeitures for both violations, leaving something of a sword hanging over SM Radio.

Pathfinder Communications Corp.

In Pathfinder Communications Corp., the FCC entered into a consent decree with the licensee of radio station WTRC-FM, Niles, Michigan, for airing a commercial “promoting a ‘storm chasing’ tour” that contained the EAS activation tones.59 The complaint was filed by an employee of the National Weather Service, who expressed concern that “this type of advertising is ‘defeating’ and ‘minimizing’ the importance of EAS Activations.”60 For violating the EAS laws, Pathfinder agreed to pay a monetary forfeiture of $46,000 and to implement a compliance plan to prevent future violations of the laws.

Univision Local Media, Inc.

In its most recent EAS enforcement action, the FCC entered into a consent decree with Univision Local Media, Inc., the parent of the licensee of radio station WXNY-FM, New York, New York.61 During the January 28, 2014, broadcast of the Spanish-language Luis Jimenez Show, the DJs played a “simulated” version of the EAS tones five times as part of a comedy sketch. Before playing the tones for the fifth time, one of the DJs commented: “[l]o que no se puede poner es el sonido por que I think it’s illegal, ya . . . . Eso es para emergencias,” or, “[t]he thing is that we cannot play the sound because I believe it’s illegal . . . it is for emergencies.”62 For violating the EAS laws, Univision agreed to pay a monetary forfeiture of $20,000 and to implement a compliance plan to prevent future violations of the laws.

THE FCC’S LONG-ARM APPROACH TO EAS REGULATION

The foregoing cases reflect a particularly aggressive approach by the FCC to enforcing the EAS laws. At the heart of this approach is the belief, repeated in the preamble to each of the recent cases, that “frivolous, promiscuous, or other unauthorized use of actual or simulated EAS tones risks desensitizing the public to the tones’ association with life-saving information.”63 But the underlying statute does not give the federal agency carte blanche to target whomever it wants, whenever it wants, for whatever it wants. In fact, both the statute and the FCC rule provide some meaningful restrictions on the agency’s enforcement powers, particularly in the area of who is liable for a violation and what constitutes prohibited content.

Who Can Be Liable for Violating the EAS Laws?

The FCC’s broad interpretation of its authority to enforce the EAS laws should provide cause for concern to any entity that creates or distributes content—particularly through an FCC-regulated entity. Nevertheless, there is a strong argument that the actual scope of the Commission’s authority is more limited than its opinions would suggest. In fact, the agency’s actions to date have been strikingly consistent—targeting the last party with an opportunity to prevent the transmission of the prohibited content.

The FCC has cited two primary arguments for its belief that it has discretion to pursue an enforcement action against any entity in the distribution chain: (1) the use of the broad phrase “no person” in both § 11.45 of the FCC’s rules and § 325(a) of the Communications Act; and (2) the use of the disjunctive “or” in the phrase “utter or transmit, or cause to be uttered or transmitted” in the statute, and the parallel phrase “transmit or cause to transmit” in the rule.

It is difficult to argue that Congress’s use of the phrase “no person” in § 325(a) was intended to do anything but provide the FCC with broad enforcement authority over false or fraudulent signals of distress. But both the statute and the rule qualify the scope of the FCC’s authority by specifying that, to be liable, a party must “utter or transmit, or cause to be uttered or transmitted” some prohibited content. Thus, the “person” to whom the laws apply must be capable of uttering or transmitting prohibited content, or at least causing prohibited content to be uttered or transmitted. This could limit the Commission’s reach to an entity that owns, controls, or has a contractual right to control the content transmitted to the end user.

Focusing first on the FCC’s rule, the regulatory history of § 11.45 clearly indicates that the Commission understood the term “transmit” to refer to the broadcast of the EAS codes, attention signal, or a simulation thereof. In its notice of proposed rulemaking proposing the rule, the agency recognized that “such broadcasts are presently prohibited by Section 325(a) of the Communications Act.”64 This is consistent with dictionary definitions, which define the word “transmit” in the telecommunications context as “to send (information, sound, etc.) in the form of electrical signals to a radio, television, computer, etc.,”65 or to “[b]roadcast or send out (an electrical signal or a radio or television program).”66

The FCC’s reasoning appears to accept that the term “transmit” is limited to a direct transmission to the public. In the Olympus Has Fallen case, for example, the Commission implicitly recognized the limited scope of this term by declining even to consider whether the cable programmers (as opposed to MVPDs) had the ability to “transmit” a movie trailer. Instead, the agency turned to the second provision of the rule, holding that entities who did not directly “transmit” could still fall within the general reach of § 11.45’s “cause to transmit” clause.

Any attempt by the FCC to use the presence of term “utter” in § 325 to expand its enforcement authority would raise serious First Amendment concerns. The government may only regulate speech based on its content, such as its use of EAS tones, if it is narrowly tailored to promote a compelling government interest.67 The Commission’s articulated interest—enhancing public safety by preserving the integrity of the EAS—certainly passes the compelling interest test. But expanding its enforcement authority to include any “utterance,” whether or not related to a radio transmission, is several bridges too far. The word “utter” is extremely broad and, without further limitation, would provide the agency with essentially unlimited enforcement powers. Accordingly, § 325(a) must be interpreted in context, as a provision of the Radio Act of 1927, and thus limited in its application to “utterances” by radio (and, perhaps, cable and other forms of communications used to transmit “false or fraudulent signal[s] of distress”). Under this interpretation, the real difference between the statute and the rule is not the persons or entities to whom they apply, but rather the content that they regulate—signals of distress under the statute and EAS codes and tones under the rule.

If only a broadcaster, MVPD, or other public-facing entity is capable of making a transmission, then only an entity with some form of “control” over those entities can “cause” a transmission. To “cause” something is to “[m]ake (something, typically something bad) happen”68 or “to make (someone) feel, have, or do something.”69 If an entity does not have the ability to “make” the transmitting entity act, then it cannot cause a transmission.

The FCC’s EAS cases bear out this distinction. In the Olympus Has Fallen case, the Commission determined that the cable programmers “caused the transmission” of the advertisements at issue because each company “decid[ed] to include the trailer in the programming it distributed to MVPDs with the knowledge that the MVPDs would, in turn, transmit the programming to their subscribers” without further review.70 Similarly, in Turner I, the agency explained that “TBS Network programming is delivered by Turner to various [MVPDs] throughout the country via satellite with the intent (indeed, the contractual obligation) that the network programming ultimately be transmitted by the MVPDs to the MVPDs’ subscribers.”71 Finally, in SM Radio, the agency focused on the fact that the programmer inserted the advertisement in the program, which it transmitted “for simultaneous retransmission,” thereby placing SM Radio in control of what material ultimately was distributed to the end user.72

In contrast, the Commission did not pursue enforcement actions against the entities that actually created the advertisements in any of the commercial cases, except for Turner I (where the promotion was produced internally). There is at least some logic to this approach because the companies that produced the advertisements were one step removed from the transmitting entities and lacked the ability to “make” them include the advertisements in their programming.

It appears, then, that the FCC is informally following a version of the “last clear chance” doctrine—pursuing an enforcement action against the party with the final opportunity to prevent the transmission. Where the transmitting entity has lacked the opportunity to review the material that it was transmitting (such as when the content was provided for simultaneous retransmission), the Commission has looked one step up the distribution chain. On the other hand, if an entity inserted the material into the program stream that was transmitted to the public, even if it did not create the prohibited content, the agency has targeted that entity for liability.

Notwithstanding this precedent, the FCC has asserted “prosecutorial discretion” over the entity against which it will pursue an enforcement action. Accordingly, although the Commission has thus far focused on the entity with the “last clear chance” to prevent the distribution to the public, it could attempt to exercise its discretion to target additional entities in the creation and distribution chain in future cases.

Defining a “Simulation”

The other aspect of the FCC’s EAS precedent that should concern creators and distributors of content is the vague definition of what constitutes a “simulation” of an EAS tone. A legal requirement generally is considered to be void for vagueness in violation of the Fifth Amendment if it “forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application,”73 or if the statute’s language “may authorize and even encourage arbitrary and discriminatory enforcement.”74 These concerns are especially acute in the First Amendment area. As the Supreme Court has explained, “where a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms.”75 For this reason, the Supreme Court applies a stricter vagueness standard to statutes that encroach upon First Amendment freedoms.76

The EAS protocol itself is actually quite specific, calling for the transmission of three consecutive EAS codes, followed by the transmission of eight to 25 seconds of attention signal.77 By rule, “[t]he Preamble and EAS Codes must use Audio Frequency Shift Keying at a rate of 520.83 bits per second” with mark frequency of 2083.3 Hz, space frequency of 1562.5 Hz, and mark and space time of 1.92 milliseconds.78 Moreover, the FCC’s rules state that “[t]he Attention Signal must be made up of the fundamental frequencies of 853 and 960 Hz . . . transmitted simultaneously . . . after the EAS header codes.”79 Thus, it is relatively simple to determine whether a sound constitutes a “recording” of the EAS codes or attention signal.

What constitutes a “simulation,” on the other hand, is inherently an ambiguous inquiry. Although the Commission repeatedly has stated that a tone is “substantially similar” to the EAS attention signal if “an average audience member would reasonably mistake the sounds for an actual EAS Attention Signal,” this definition forces content creators and distributors to insert their judgment not only about how “an average audience member would reasonably” respond to a particular sound, but also how the FCC might answer that inquiry. Further confusing matters, the agency has sought to clarify that not every “alert” sound constitutes a “simulation” of the EAS codes or EAS attention signal, and that “general alarms or other loud noises, including bells, claxons, and police, fire or civil defense sirens” are not simulations of the EAS codes or attention signal and thus are not covered by the EAS rules. At the same time, however, the Commission has reserved the right to pursue an enforcement action “in a potentially broader circumstance in which such sounds might contribute to false or fraudulent communications of distress prohibited under the statute.”80

As a result of the FCC’s approach, content creators and distributors have been left to guess whether a particular sound “reasonably” could be mistaken by “an average audience member” for one of the EAS tones. This no doubt has resulted in a chilling of perfectly acceptable speech that only will continue if the Commission continues down its current path without adopting a more bright line interpretation of what constitutes a simulation of an EAS tone.

CONCLUSION

Although heightened FCC enforcement activity directed at the misuse of the EAS codes and attention signal is relatively new, it has become clear that the Commission is charting an aggressive course in this area. In light of the FCC’s recent decisions, any entity involved in the production and distribution of content should take steps to ensure that it is not the next target of an FCC enforcement action. Even companies well outside the agency’s reach could face claims for indemnification or, at the very least, client relations issues, if content that they create or distribute becomes the subject of an FCC investigation. Accordingly, every entity involved in the production or distribution of content would be wise to steer clear of incorporating sound effects that could reasonably be mistaken for one of the EAS tones.

Endnotes

1. See In re Viacom Inc., Notice of Apparent Liability for Forfeiture, 29 FCC Rcd. 2548 (2014) [hereinafter Viacom Notice of Apparent Liability]. In January 2015, the FCC affirmed its findings and adopted the proposed fines against Viacom and ESPN. See In re Viacom Inc., Forfeiture Order, FCC Docket No. 15-2 (Jan. 20, 2015) [hereinafter Viacom Forfeiture Order]. NBC Universal elected to pay the forfeiture as proposed in the notice of apparent liability.

7. See In re Amendment of Part 73, Subpart G, of the Commission’s Rules Regarding the Emergency Broad. Sys., Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking, 7 FCC Rcd. 6903 (1993).

20. See In re Amendment of Part 73, Subpart G, of the Commission’s Rules Regarding the Emergency Broad. Sys., Report and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd. 1786 (1994) [hereinafter EBS Rules Report and Order].

76. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (“[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.”). Even outside of the First Amendment context, the D.C. Circuit has long held that “[t]raditional concepts of due process incorporated into administrative law preclude an agency from penalizing a private party for violating a rule without first providing adequate notice of the substance of the rule.” Satellite Broad. Co. v. FCC, 824 F.2d 1, 3 (D.C. Cir. 1987); see also Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1328–29 (D.C. Cir. 1995). This follows the Supreme Court’s well-settled mandate that “[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994).